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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


V  Origin  and  Philosophy  of 
the  Suit  in  Equity 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


THE  ORIGIN  AND  PHILOSOPHY  OF 
THE  SUIT  IN  EQUITY 


BY 


JOHN  B.  WXNSLOW,  A.M.,  LL.B.,  LL.D. 

LATE  CHIEF  JUSTICE,  SUPREME  COURT  OP  WISCONSIN 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE  INSTITUTE 

CHICAGO 


Copyright    1916,  bj    Blackstone  Institute 
Copyright,   1010.  by  Blackstone  Institute 


T 

W73Z4e 


JOHN  B.  W1NSLOW 


JOHN  B.  WINSLOW 

Mr.  Justice  Winslow,  late  Chief  Justice  of  the 
Supreme  Court  of  Wisconsin,  was  born  Oct.  4,  1851, 
at  Nunda,  Livingston  County,  N.  Y.  He  graduated 
at  Racine  College,  Wis.,  in  1871,  and  entered  upon 
the  study  of  law  in  the  law  office  of  E.  0.  Hand,  and 
later  in  the  law  office  of  Fuller  &  Dyer.  He  finished 
his  course  of  reading  in  the  law  department  of  the 
University  of  Wisconsin,  from  which  he  graduated 
in  1875,  and  entered  upon  the  practice  at  Racine. 

Justice  Winslow  was  for  several  years  city  attor- 
ney of  Racine.  In  April,  1883,  he  was  elected  cir- 
cuit judge  of  the  First  Judicial  circuit,  and  entered 
upon  his  judicial  duties  in  January,  1884,  serving 
in  that  capacity  (being  re-elected)  until  May  4, 
1891,  when  he  was  appointed  associate  justice  of  the 
supreme  court  in  place  of  Hon.  David  Taylor, 
deceased.  In  April,  1892,  he  was  elected  to  fill  the 
residue  of  Judge  Taylor's  term;  in  April,  1895,  he 
was  re-elected  for  a  full  term ;  and  again  re-eleeted 
for  a  full  term  in  April,  1905.  He  became  chief 
justice  by  reason  of  seniority  of  service  upon  the 
death  of  Chief  Justice  Cassoday,  Dec.  30,  1907. 

He  was  re-elected  for  a  full  term  of  ten  years  in 
April,  1915,  no  candidate  appearing  in  opposition, 
and  served  until  his  death  in  1920. 

He  served  for  one  year  as  President  of  the  Amer- 
ican Society  of  Criminal  Law  and  Criminology. 
He  is  the  author  of  a  history  of  the  Supreme  Court 
of  Wisconsin  from  1848  to  1880,  entitled,  "The 
Story  of  a  Great  Court ; ' '  editor  of  ' '  Legal  Forms ; ' ' 
and  author  of  "The  Citizen  and  The  Law"  in 
Modern  American  Law. 

Justice  Winslow  was  a  legal  philosopher.  Care- 
ful study  and  an  astute  mind  made  him  the  idol  of 
his  state  and  won  for  him  the  highest  respect  of 
bench  and  bar. 


THE  OEIGIN  AND  PHILOSOPHY  OF 
THE  SUIT  IN  EQUITY 

By  John  B.  Winslow,  A.M.,  LL.B.,  LL.D. 

The  reason  why  two  courts  existed  side  by  side  for 
many  years  in  English-speaking  countries,  one  called 
a  court  of  law  and  one  a  court  of  chancery  (or  a  court 
of  equity) ,  is  not  always  clearly  understood,  even  by 
experienced  lawyers;  and  the  reason  why  we  still' 
speak  of  a  court  of  equity  and  an  action  in  equity,., 
although  there  is  in  most  of  our  states  but  one  court 
using  but  one  form  of  action,  is  also  a  matter  on  which 
there  is  more  or  less  confusion  of  thought.  1 

Logically  there  seems  no  justification  for  the  ex- 
istence of  two  kinds  of  courts,  each  created  to  admin- 
ister justice  but  each  administering  its  separate  brand 
of  justice  in  a  different  way.  Like  many  another  in- 
stitution which  has  existed  in  England  and  the  coun- 
tries which  have  sprung  therefrom,  the  reason  for  the 
existence  of  the  court  of  equity  is  not  really  logical, 
although  it  may  not  be  strictly  illogical.  The  English 
method  of  meeting  difficulties  has  generally  been  the 
"cut  and  try"  method  rather  than  the  scien- 
tific or  philosophical  method.  The  difficulty  arises, 
the  need  is  pressing,  the  philosopher  is  not  called  in 
to  evolve  the  logical  remedy,  but  almost  any  expedient 
or  makeshift  at  hand  is  grasped  and  put  into  serviee, 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

Sometimes  it  serves  its  purpose  fairly  well ;  generally 
it  goes  through  a  process  of  slow  evolution  and  at  last 
appears  as  a  full-fledged  institution,  touched  and 
glorified  by  the  glamour  which  antiquity  lends  even 
to  the  commonplace. 

To  understand  why  the  court  of  chancery  arose 
we  must  understand  the  history  of  the  administration 
of  justice  in  England,  and  above  all  we  must  under- 
stand the  original  powers  of  the  Lord  Chancellor  of 
England  and  the  gradual  evolution  of  those  powers 
during  the  centuries  immediately  following  the  Nor- 
man Conquest.  Had  there  been  no  chancellor  there 
could  hardly  have  arisen  a  court  of  chancery,  at  least 
in  anything  like  the  form  which  it  finally  assumed. 
It  is  the  purpose  of  this  lecture  to  rapidly  sketch  the 
evolution  of  the  chancellor's  powers  and  thus  to  ascer- 
tain the  why  and  wherefore  of  the  court  of  equity. 

THE  ORIGINAL  FUNCTIONS  OF  THE  NORMAN 
CHANCELLOR 

William  the  Conqueror's  chancellor  was  an  ecclesi- 
astic, his  chaplain,  private  counselor  and  bearer  of  his 
seal,  and  he  performed  the  duties  of  a  private  secre- 
tary which,  it  may  be  presumed,  were  not  very  oner- 
ous in  those  days  of  limited  education  and  still  more 
limited  means  of  communication.  For  many  years 
the  functions  of  the  chancellor  remained  much  the 
same.  He  was  always  an  ecclesiastic, — indeed  this 
was  a  matter  of  necessity,  for  none  but  ecclesiastics 
could  wield  a  pen  with  any  degree  of  facility,  and  he 
became  known  not  only  as  the  king's  chancellor  and 


THE  SUIT  IN  EQUITY  7 

the  keeper  of  the  great  seal,  but  also  as  the  "  keeper 
of  the  king's  conscience."  Truly  in  those  days  of 
fighting  and  plundering,  when  the  king  was  but  too 
frequently  the  chief  swashbuckler  of  a  band  of  fierce 
guerrillas,  this  last  function  must  have  been  a  weighty 
one.  I  fancy  the  king  was  often  greatly  relieved  to 
be  able  to  give  his  conscience  into  the  keeping  of  an- 
other. Certainly  there  seem  to  have  been  many  occa- 
sions when  the  king  and  his  conscience  must  have  been 
widely  separated. 

The  Lord  Chancellor  of  England  in  the  nineteenth 
century,  however,  is  purely  a  secular  official;  he  is 
the  head  of  the  judicial  system,  the  presiding  officer 
of  the  House  of  Lords,  the  first  lay  subject  in  the  em- 
pire, entitled  to  precedence  above  all  others  except 
those  of  royal  blood  and  the  primate  of  England.  No 
single  act  of  Parliament  has  accomplished  this 
change,  but  it  has  come  about  slowly  by  evolution  and 
gradual  growth ;  and  this  process  of  evolution,  so  far 
as  it  concerns  his  judicial  power,  I  shall  attempt  to 
trace. 

The  origin  of  the  word  " chancellor"  as  applied  to 
this  official  has  been  much  disputed.  By  some  it  is  said 
to  have  been  derived  from  the  place  in  which  he  sat, 
which  was  fenced  off  from  the  multitude  by  crossbars 
or  "cancelli";  by  others  it  is  said  to  be  derived  from 
the  Latin  verb  "cancellare,"  from  the  fact  that  one 
of  his  duties  was  to  cancel  the  king's  letters  patent 
which  had  been  granted  contrary  to  law.  Whatever 
its  derivation,  the  title  is  a  very  ancient  one.  The 
"Caneellarius"  existed  as  an  important  official  under 
the  Roman  emperors,  and  was  adopted  by  the  church 


8  MODERN  AMERICAN  LAW  LECTURE 

and  afterwards  found  his  way  very  naturally  into  the 
courts  of  the  European  states. 

THE  ANGLO-SAXON   CHANCELLORS 

The  Anglo-Saxon  kings  before  the  conquest  are 
said  to  have  had  their  chancellors,  all  of  whom  were 
ecclesiastics,  and  one  at  least  reached  the  dignity  of 
canonization  as  a  saint.  There  are  no  authentic 
records  of  the  functions  of  these  far  away  chancel- 
lors. They  are  very  shadowy  personages,  and  it  is 
difficult  to  distinguish  between  history  and  fable. 
Chancellor  Swithin,  who  afterwards  reached  saint- 
hood, is  the  best  known  and  will  be  longest  remem- 
bered, not  because  he  was  chancellor,  however,  but 
because  of  his  piety  and  his  supposed  miraculous  pow- 
ers and  because  he  superintended  the  instruction  of 
Alfred,  called  the  Great.  One  of  his  decisions  has 
come  down  to  us,  but  has  never  been  relied  upon  as  a 
precedent.  It  is  said  that  an  old  woman  came  to 
complain  to  him  that  the  eggs  which  she  was  carry- 
ing to  market  in  her  basket  had  been  wantonly 
broken,  whereupon  the  good  chancellor  made  the 
sign  of  the  cross  over  the  fragments  and  immediately 
every  egg  was  made  whole.  This  was  indeed  the  ad- 
ministration of  specific  relief  in  equity,  and  I  fancy 
that  many  a  judge  has  wished  himself  able  to  admin- 
ister such  relief  since  the  day  of  the  saint.  It  is 
worthy  of  note  in  passing  that  the  good  chancellor's 
miraculous  performances  did  not,  according  to  the 
popular  tradition,  cease  with  his  death.  The  tradi- 
tion is  that  upon  his  death  his  body  was,  by  his  own 
direction,  buried  in  the  churchyard  among  the  poor 


THE  SUIT  IN  EQUITY  9 

instead  of  in  his  cathedral.  Years  afterwards,  his 
admirers  proposed  to  transfer  the  remains  of  the 
saint  to  the  cathedral  and  deposit  them  under  the 
high  altar  with  solemn  ceremonies.  This  was  to  be 
done  on  the  fifteenth  day  of  July,  the  day  set  apart 
to  his  honor  in  the  calendar,  but  he  so  strongly  disap- 
proved of  the  proceeding  that  he  sent  a  tremendous 
rain  which  continued  for  forty  days  until  the  project 
was  abandoned,  ever  since  which  time  the  weather  is 
supposed  to  be  regulated  for  the  next  forty  days  by 
the  weather  on  St.  S within 's  day.  The  Scoteh  have 
put  it  in  the  form  of  a  proverb  thus : 

"St.  Swithin's  day  if  it  do  rain, 
For  forty  days  it  will  remain ; 
St.  Swithin's  day  and  be  it  fair, 
For  forty  days  'twill  rain  na  mair." 

I  do  not  stand  sponsor  for  St.  Swithin  or  his  mir- 
acles,— I  simply  tell  the  tale  as  it  was  told  when 
there  was  greater  faith  upon  the  earth  than  in  these 
days  of  cynical  skepticism. 

Whatever  were  the  duties  and  powers  of  the  old 
Saxon  chancellors,  our  information  concerning  them 
is  too  scanty  and  unreliable  to  build  upon  and  it  can 
not  now  be  affirmed  with  any  certainty  that  they  ex- 
erted any  lasting  influence  upon  English  government 
or  institutions.  Doubtless  they  were  learned  men 
for  the  times  in  which  they  lived,  and  many  of  them 
lived  and  died  in  the  odor  of  sanctity,  but  when  the 
Norman  kings  came  in  they  passed  away  forever  and 
became  but  an  unsubstantial  memory. 

Our  serious  investigations  begin,  therefore,  with 


10  MODERN  AMERICAN  LAW  LECTURE 

the  Norman  chancellors,  whose  line  can  be  traced 
with  considerable  certainty  from  the  time  of  William 
the  Conqueror.  The  Battle  of  Hastings  completely 
changed  the  course  of  English  history.  Lord  Camp- 
bell says :  "In  all  history  there  is  not  a  more  striking 
instance  of  subjugation.  Not  only  did  almost  all  the 
land  in  the  kingdom  change  hands, — the  native  Eng- 
lish being  reduced  to  the  thralls  of  the  invaders, — but 
legislative  measures  were  brought  forward  either  in 
the  sole  name  of  the  sovereign  or  through  the  form 
of  a  national  council  under  his  control  seeking  to 
alter  the  language,  the  jurisprudence  and  the  man- 
ners of  the  people.  .  .  .  French  was  substi- 
tuted for  the  English  tongue  in  all  schools  and  courts 
of  justice;  the  intricate  feudal  law  of  Normandy 
superseded  the  simplicity  of  Saxon  tenures ;  trial  by 
battle  was  introduced  in  place  of  the  joint  judgment 
of  the  bishop  and  the  earl  in  the  county  court;  the 
separation  was  brought  about  between  ecclesiastical 
and  civil  jurisdiction,  and  the  great  survey  of  the 
kingdom  was  planned  and  accomplished,  of  which  we 
have  the  result  in  *  Domesday'  book." 

THE  ANGLO-SAXON  IDEA  OF  THE  ADMINISTRATION 

OF  JUSTICE 

Prior  to  the  conquest,  the  English  government, 
while  monarchical,  was  by  no  means  so  centralized  as 
it  became  after  the  Norman  power  was  established. 
Justice  was  administered  in  a  rude  form,  principally 
by  local  courts.  Hume  says,  "The  administration  of 
justice  in  particular,  by  the  Courts  of  Decennary,  the 
Hundred  and  the  County,  was  well  calculated  to  de- 


THE  SUIT  IN  EQUITY  11 

fend  general  liberty  and  to  restrain  the  power  of  the 
nobles.  In  the  county  courts  or  shiremoots  all  the 
freeholders  were  assembled  twice  a  year  and  re- 
ceived appeals  from  the  inferior  courts.  They  there 
decided  all  causes,  ecclesiastical  as  well  as  civil,  and 
the  Bishop,  together  with  the  Alderman  or  Earl,  pre- 
sided over  them ;  the  affair  was  determined  in  a  sum- 
mary manner  without  much  pleading,  formality  or 
delay,  by  a  majority  of  voices,  and  the  Bishop  and 
Alderman  had  no  further  authority  than  to  keep 
order  among  the  freeholders  and  interpose  with  their 
opinion.  Where  justice  was  denied  during  three 
sessions  by  the  Hundred,  and  then  by  the  County 
Court,  there  lay  an  appeal  to  the  King's  Court;  but 
this  was  not  practiced  on  slight  occasions." 

Doubtless  the  justice  which  was  administered  in 
these  local  courts  was  rude  and  defective,  but  it  can 
readily  be  seen  that  this  system  was  democratic  in  its 
nature  and  necessary  effects  and  directly  opposed  to 
the  centralization  of  judicial  power  in  the  hands  of 
the  King.  It  tended  to  magnify  the  power  and  im- 
portance of  local  and  county  authorities  while  mini- 
mizing the  power  of  the  King.  This  was  perhaps  the 
genius  of  the  Anglo-Saxon  character  and  institu- 
tions, but  the  genius  of  Norman  rule  was  exactly  the 
reverse.  No  kings  ever  reigned  more  absolutely 
than  William  and  his  immediate  successors.  Louis 
XIV  could  not  say,  "I  am  the  state/'  as  truly  as 
William  the  Conqueror  could.  He  was  not  simply  a 
king, — he  was  an  absolute  ruler  who  made  laws  by 
his  fiat  and  enforced  them  by  his  sword.  He  brought 
with  him  a  band  of  devoted  followers  consisting  of 


12  MODERN  AMERICAN  LAW  LECTURE 

Norman  adventurers,  who  formed  a  ready-made 
cabinet  of  counselors,  and  no  native  born  English- 
man could  hope  for  admission  to  this  cabinet.  Among 
this  band  of  aliens  was  Maurice,  a  Norman  ecclesias- 
tic, who  became  in  the  year  1067  the  first  of  the  long 
line  of  chancellors  which  reaches  down  to  the  present 
time.  The  completeness  of  the  subjugation  of  the 
Anglo-Saxons  has  been  already  referred  to;  their 
lands  were  taken  away,  their  language  proscribed 
and  their  manners  and  customs  despised  and  sup- 
planted by  the  Norman  French.  Of  all  the  changes 
so  made,  the  change  in  the  administration  of  justice 
(so-called)  was  probably  as  radical  as  any. 

THE  NORMAN  IDEA  OF  THE  ADMINISTRATION  OF 

JUSTICE 

The  Anglo-Saxon  idea  that  justice  was  primarily 
to  be  administered  by  a  man's  neighbors,  with  the 
King's  Court  as  a  possible  final  resort  in  extreme 
cases,  was  supplanted  by  the  Norman  idea  that  the 
king  was  the  fountain  of  all  justice,  from  whom  it 
flowed  in  gracious  streams  through  his  judges  to  the 
people.  The  local  courts  were  not  indeed  formally 
abolished,  but  they  passed  by  natural  process  into 
disuse,  and  the  king's  courts  took  their  places.  The 
process  was  greatly  hastened  by  the  requirement  that 
court  proceedings  must  be  conducted  in  the  Norman- 
French  language  instead  of  in  the  language  "  under- 
stated of  the  people."  Thus  Norman  lawyers 
necessarily  took  the  place  of  the  lawyers  of  the  soil, 
and  they  naturally  resorted  to  the  Norman  courts 
rather  than  to  the  native  courts.     Not  only  this,  but 


THE  SUIT  IN  EQUITY  13 

the  king's  courts  were  possessed  of  greater  dignity, 
with  greater  power  behind  them  and  were  the  prod- 
uct of  a  higher  civilization.  The  Norman  courts 
were  also  more  formal  and  dignified  in  their  pro- 
cedure. In  the  Anglo-Saxon  courts  there  was  little 
of  formality,  the  seeker  after  justice  relating  his 
wrongs  orally  and  the  opposing  party  answering  in 
the  same  way ;  in  the  Norman  courts  the  action  had 
to  be  commenced  by  a  writ  issued  by  the  chancellor 
under  the  seal  of  the  king,  and  directed  to  some  in- 
ferior court  requiring  it  to  do  justice  between  the 
parties. 

THE  PASSING  OF  THE  ANGLO-SAXON  COURTS 

It  is  difficult  at  this  distance  of  time  to  ascertain 
certainly  the  relative  positions  of  the  new  king's 
courts  and  the  old  Saxon  inferior  courts  under  the 
first  Norman  rulers.  It  seems  to  be  a  fact  that  they 
existed  for  many  years  side  by  side,  the  king's  courts 
increasing  and  the  old  local  courts  as  steadily  de- 
creasing in  importance. 

The  courts  of  barony  and  the  county  courts  re- 
mained, but  they  seem  to  have  been  gradually  turned 
into  Norman  courts  with  Norman  judges,  and  in  time 
itinerant  judges  were  sent  out  through  the  kingdom 
who  sat  in  these  courts  and  tried  all  cases  brought 
before  them;  these  judges  were  called  justices  in 
Eyre,  or  wandering  judges,  and  were  the  first  judges 
who  rode  the  circuit.  Thus  the  king  became  in  fact 
as  well  as  in  theory  the  head  of  the  whole  judicial 
system.  He  often  sat  in  his  own  court,  the  Curia 
Regis,  which  followed  his  person,  and  heard  causes 


14  MODERN  AMERICAN  LAW  LECTURE 

and  pronounced  judgment,  being  assisted  by  his  chief 
officers,  the  constable,  marshal,  treasurer  and  chan- 
cellor, and  such  feudal  barons  as  thought  proper  to 
attend.     This  was  the  great  and  powerful  court  of 
the  kingdom;  and  in  the  king's  absence  it  was  pre- 
sided over  by  the  chief  justiciar,  who  was  the  first 
magistrate  in  the  state,  and,  as  Hume  says,  "a  kind 
of  viceroy,  on  whom  depended  all  the  civil  affairs  of 
the  kingdom.' '     This  court  had  jurisdiction  of  all  the 
business  afterwards  parcelled  out  among  the  four 
courts,  the  Chancery,  the  King's  Bench,  the  Common 
Pleas  and  the  Exchequer.     In  Saxon  times,  as  before 
noted,  no  appeal  came  to  the  King's  court  except 
upon  denial  or  delay  of  justice  by  the  inferior  courts, 
but  William  empowered  the  King's  court  to  receive 
appeals  freely  both  from  the  courts  of  barony  and 
from  the  county  courts,  as  well  as  from  the  courts  of 
his  itinerant  judges,  and  thus  brought  the  adminis- 
tration of  justice  ultimately  into  the  hands  of  the 
sovereign.     Hume  says  that  by  these  expedients  "the 
courts  of  barony  were  kept  in  awe  and  if  they  still 
preserved  some  influence  it  was  only  from  the  ap- 
prehensions which  the  vassals  might  entertain  of  dis- 
obliging their  superior  by  appealing  from  his  juris- 
diction.    But  the  county  courts  were  much  discred- 
ited and  as  the  freeholders  were  found  ignorant  of 
the  intricate  principles  and  forms  of  the  new  law, 
the  lawyers  gradually  brought  all  business  before  the 
King's  judges  and  abandoned  the  ancient,  simple  and 
popular  judicature." 

It  will  be  readily  understood  that  these  changes 
were  not  entirely  disadvantageous  to  the  freeholder. 


THE  SUIT  IN  EQUITY  15 

Under  the  former  system  the  power  and  influence  of 
the  feudal  lord  or  baron  within  the  barony  were  well- 
nigh  supreme.  The  king's  court  was  shadowy  and 
remote,  and  the  king's  power  was  little  felt.  The 
baron  was  apt  to  be  a  tyrant  on  a  small  scale  and 
there  was  practically  no  power  to  keep  him  in  check, 
and  he  often  abused  his  power  most  shamefully  and 
denied  justice  to  those  who  were  too  weak  to  demand 
it  or  too  poor  to  purchase  it.  His  power  and  impor- 
tance were,  however,  radically  reduced,  if  not  taken 
away,  by  the  new  system,  and  thus  the  king's  courts 
became  to  some  extent  the  guardians  of  the  rights  of 
the  common  people  as  against  their  immediate  feudal 

lords. 

THE  KING'S  SEAL 

This  sketch  of  the  change  in  the  judicial  system 
brought  about  under  the  early  Norman  kings  is  neces- 
sarily very  hasty  and  imperfect,  but  I  believe  it  to  be 
substantially  correct  and  it  seems  necessary,  in  order 
to  understand  the  manner  in  which  the  Norman  chan- 
cellor grew  to  be  the  head  of  the  English  judicial  sys- 
tem. As  I  have  said  before,  the  chancellor  was  orig- 
inally the  king's  chaplain,  his  spiritual  and  temporal 
adviser,  attached  to  his  immediate  person,  and  the 
keeper  of  his  seal.  The  king's  seal  was  an  instru- 
ment of  the  greatest  importance.  Without  it  no 
grant  or  patent  was  of  any  validity,  and  no  formal 
act  of  the  king  was  complete.  It  was  a  relic  of  the 
times  when  few  could  write  and  when  the  seal  was 
practically  the  only  method  of  authentication  and 
took  the  place  of  a  signature.  The  chancellor  be- 
came such  by  delivery  to  him  of  the  great  seal  and 


16  MODERN  AMERICAN  LAW  LECTURE 

ceased  to  be  such  when  the  seal  was  taken  from  him 
and  bestowed  upon  another.  Like  many  another  cus- 
tom, the  custom  of  using  a  seal  long  survived  the 
necessity  which  called  it  into  use,  and  today  every 
government  and  every  corporation  has  its  seal,  with- 
out which  its  acts  are  invalid.  So  great  was  the  im- 
portance attached  to  the  great  seal  that  when  in  1688 
James  II  was  flying  from  London  he  threw  the  great 
seal  into  the  Thames,  with  the  idea  that  the  functions 
of  the  government  must  stop  in  the  absence  of  the 
seal,  and  indeed  the  act  caused  much  perplexity  and 
there  was  not  a  little  doubt  and  uncertainty  as  to  how 
the  government  could  go  on  or  a  parliament  be  sum- 
moned without  the  great  seal.  It  is  easy  to  see  that 
the  bearer  of  the  great  seal  was  necessarily  an  im- 
portant personage  and  one  very  near  to  the  king. 
He  was  a  member  of  the  king's  council,  though  cer- 
tainly not  so  important  a  member  as  the  chief  jus- 
ticiar, who  at  that  time  outshone  in  splendor,  power 
and  dignity  all  others. 

THE  ORIGINAL  WRIT  AND  ITS  FUNCTION 

As  before  stated,  the  Norman  system  involved  the 
king's  writ,  sealed  with  the  great  seal,  for  the  com- 
mencement of  every  action  in  the  king's  courts.  This 
writ  had  to  be  paid  for  and  it  was  issued  by  the 
chancellor  by  virtue  of  his  office  as  keeper  of  the  seal. 
Thus  the  chancellor  became  a  fundamental  and  im- 
portant part  of  the  legal  machinery  of  the  realm. 
To  him  every  suitor  must  go  and  state  his  case,  pay 
his  fine,  as  it  was  called,  and  obtain  his  original  writ 
commanding  the  inferior  court  to  administer  justice 


THE  SUIT  IN  EQUITY  17 

in  the  case.     Thus  the  chancellor  first  passed  upon 
the  litigant's  cause  of  action  upon  a  prima  facie 
showing  and  shaped  the  writ  necessary  to  meet  the 
supposed    wrong.    As    litigation    increased    these 
duties  became  burdensome  and  the  chancellor  called 
to  his  assistance  clerks  learned  in  the  law  who  as- 
sisted in  the  preparation  of  writs,  called  "Magistri," 
or  Masters  in  Chancery.    When  a  new  or  excep- 
tional state  of  facts  arose,  new  writs  were  framed 
either  by  the  chancellor  himself  or  in  cases  of  diffi- 
culty by  the  King's  Council,  but  as  years  rolled  on 
the  writs  naturally  settled  into  set  forms,  which  were 
not  varied  and  the  framing  of  new  writs  ceased  and 
was  expressly  forbidden  by  statute  in  the  year  1258. 
This  jurisdiction  is  called  the  common  law  jurisdic- 
tion of  the  chancellor  and  is  not  to  be  confounded 
with  the  equitable  jurisdiction  which  grew  up  later 
and  became  of  far  greater  importance.     This  com- 
mon law  jurisdiction  was  clerical  in  its  nature.     The 
decision  of  the  chancellor  as  to  the  issuance  of  the 
writ  or  the  form  of  the  writ  was  not  binding  upon 
the  court  to  which  it  ran,  but  its  propriety  and  valid- 
ity were  determined  by  the  court  itself.    It  seems 
that  for  many  years  the  issuance  of  these  original 
writs  constituted  the  sole  judicial  functions  of  the 
chancellor  save  that  he  sat  as  a  member  of  the  coun- 
cil, and  of  this  body  it  is  now  necessary  to  speak. 

THE  KING'S  COUNCIL 

The  council  was  composed  of  the  chancellor,  the 
treasurer  and  the  judges  and  other  great  officers  and 
dignitaries  who  were  summoned  to  assist  the  king  as 


18  MODERN  AMERICAN  LAW  LECTURE 

his  permanent  advisers.  The  king  himself  sat  in  it 
and  it  doubtless  existed  in  an  irregular  form  from 
the  time  of  William  the  Conqueror,  but  it  was  for- 
mally erected  into  a  separate  tribunal  by  Henry  II 
in  the  latter  part  of  the  twelfth  century  and  was 
made  the  court  of  last  resort.  It  met  frequently, 
perhaps  daily,  and  had  from  time  to  time  associated 
with  it  the  lords  and  other  great  ecclesiastical  digni- 
taries specially  summoned  to  attend  its  meetings,  and 
it  then  sat  as  the  Great  Council,  which  was  distinct 
from  Parliament,  and  the  permanent  council  then 
received  the  title  of  Privy  Council.  "The  Council,' ' 
says  Mr.  Hardy,  "had  an  absolute  jurisdiction  over 
all  the  proceedings  in  the  courts  below;  if  any  liti- 
gant felt  himself  aggrieved,  he  applied  for  redress  to 
the  council  in  the  same  manner  as  he  would  have 
applied  to  the  king  before  the  latter  committed  his 
prerogative  of  distributing  justice  and  equity  to  his 
council ;  application  was  made  to  it  where,  from  the 
heinousness  of  the  offence  or  the  rank  or  power  of 
the  party  or  other  cause,  there  was  likely  to  be  an 
impediment  to  a  fair  trial  or  the  attainment  of  jus- 
tice in  the  ordinary  tribunals.  So  also  when,  by 
force  or  violence,  justice  was  prevented  from  taking 
its  ordinary  course."  It  exercised  plenary  jurisdic- 
tion and  either  took  the  case  in  its  own  hands  or  gave 
specific  directions  to  the  lower  court,  as  the  case 
seemed  to  require.  This  august  tribunal  completed 
the  Norman  judicial  system;  today  the  House  of 
Lords  is  the  highest  appellate  court  in  England  and 
is  the  direct  descendant  and  representative  of  the 
King's  Council  of  eight  hundred  years  ago. 


THE  SUIT  IN  EQUITY  19 

THE  GROWTH  OF  THE  CHANCELLOR'S  POWER 

Gradually  as  the  king's  business  increased,  as  he 
was  compelled  to  be  absent  on  foreign  wars  and  other 
enterprises,  he  ceased  to  exercise  his  right  to  sit  in 
the  council,  and  the  words  "  Coram  rege"  became  a 
mere  formal  expression  in  the  council  and  a  fiction. 
While  the  king  thus  gradually  passed  out  of  the 
council,  it  was  natural  that  the  chancellor  should  be- 
come the  presiding  officer.  No  one  was  so  close  to 
the  king  as  he  was,  no  one  had  his  ear  so  completely 
and  the  king  would  be  very  apt  to  delegate  his  pow- 
ers to  his  intimate  friend  and  counselor  with  the 
feeling  that  his  own  wishes  would  be  consulted  and 
his  interests  carefully  guarded  by  his  private  secre- 
tary and  spiritual  adviser  who  depended  for  his  con- 
tinued existence  in  office  simply  upon  the  king's  will. 
Being  still  an  ecclesiastic,  it  is  not  probable  that  he 
shrank  at  all  from  assuming  the  presiding  officer's 
position.  However  it  came  about,  certain  it  is  that 
the  chancellor  became  the  president  of  the  king's 
council,  or,  as  the  quaint  and  ancient  expression  is, 
he  ascended  the  "Woolsack"  and  thus  took  another 
giant  stride  in  the  steady  march  of  power.  It  seems 
that  his  seat  was  called  the  woolsack  from  the  fact 
that  in  very  early  times  he  actually  sat  upon  a  sack 
of  wool  for  no  other  reason  probably  than  because  it 
was  a  soft  and  comfortable  seat. 

By  the  time  of  Henry  II,  in  the  latter  half  of  the 
twelfth  century,  this  advance  had  been  made  and  the 
chancellor's  dignity  and  power  had  outstripped  thai 
of  the  chief  justiciar. 


20  MODERN  AMERICAN  LAW  LECTURE 

THE  FIRST  SAXON  CHANCELLOR  AFTER  THE 
CONQUEST 

At  this  time  flourished  the  great  and  talented 
A'Becket,  the  first  Saxon  chancellor  and  the  man 
who  firmly  established  the  office  in  its  position  of 
commanding  power.  Campbell  says  of  him,  "  While 
he  continued  chancellor  the  office  of  grand  justiciar 
does  not  seem  to  have  been  filled  and,  except  the 
king,  he  had  no  superior.  Tall  in  stature,  with  a 
handsome  and  commanding  countenance,  his  figure 
pleased  the  eye,  while  his  subtle  reasonings,  his  pol- 
ished elocution  and  facetious  gayety  won  the  heart. 
His  loftiness  of  mind  that  was  proud  and  ceremoni- 
ous with  rank  and  power,  softened  into  affability, 
gentleness  and  liberality  towards  his  inferiors  and 
dependents ;  popularity  being  his  passion,  he  studied 
to  be  attractive  and  he  knew  that  the  condescensions 
of  greatness  have  still  greater  influence  than  its 
power.  He  was  the  first  to  give  the  office  of  chan- 
cellor the  pre-eminence  and  splendor  which  have 
since  belonged  to  it." 

Being  the  first  Saxon  who  was  promoted  to  any 
office  of  distinction  since  the  Norman  rule  began,  his 
elevation  caused  great  joy  to  the  native  English. 
He  was  learned  in  the  Norman  language  and  law, 
both  civil  and  canon,  but  he  was  not  ashamed  of  his 
Saxon  origin,  but  rather  proclaimed  it.  He  was 
only  in  deacon's  orders  when  made  chancellor  early 
in  the  reign  of  Henry  II,  but  was  subsequently  raised 
to  the  dignity  of  Archbishop  of  Canterbury  and 
primate  of  England.  Prior  to  his  becoming  arch- 
bishop he  lived  in  the  greatest  splendor  and  was  in 


THE  SUIT  IN  EQUITY  21 

high  favor  with  the  young  king,  who  is  said  to  have 
consorted  with  him  on  the  most  intimate  terms  of 
good  fellowship.  He  not  only  presided  in  the  king's 
council  and  superintended  the  domestic  administra- 
tion of  the  kingdom,  but  he  went  on  foreign  embas- 
sies and  even  led  armies  into  the  field.  With  our 
ideas  as  to  the  proper  sphere  of  an  ecclesiastic,  this 
seems  strange,  but  there  was  nothing  strange  in  it 
then.  In  1158  he  was  sent  on  an  embassy  to  the 
French  court  to  negotiate  a  marriage  between  the 
king's  son,  who  was  still  a  boy,  and  a  daughter  of  the 
king  of  France.  The  account  given  by  Fitzstephen 
of  Becket's  retinue  upon  this  embassy  shows  the 
height  of  grandeur  which  the  Chancellor  had  reached. 
He  says,  "He  took  with  him  about  two  hundred 
mounted  on  horseback  of  his  own  family,  knights, 
priests,  standard  bearers  and  squires,  sons  of  noble- 
men forming  his  bodyguard,  and  all  completely 
armed.  All  these,  and  all  their  followers  were  fes- 
tively arrayed  in  new  attire,  each  according  to  his 
degree.  He  carried  with  him  all  kinds  of  dogs,  and 
birds  for  field  sports  used  by  kings  and  rich  men. 
In  his  train  he  had  eight  wagons;  each  wagon  was 
drawn  by  five  horses  equal  to  war  horses,  well 
matched  and  with  uniform  harness;  each  horse  was 
taken  care  of  by  a  stout  young  man  dressed  in  a  new 
tunic.  Two  wagons  carried  nothing  but  ale  made 
with  water  and  malt  in  casks  fastened  with  iron  to 
be  given  to  the  French.  The  furniture  of  the  Chan- 
cellor's chapel  filled  one  wagon,  his  chamber  another, 
his  kitchen  another;  others  were  loaded  with  eat- 
ables and  drink  for  the  use  of  himself  and  his  train. 


22  MODERN  AMERICAN  LAW  LECTURE 

He  had  twelve  sumpter  horses;  eight  carried  the 
Chancellor's  gold  and  silver  plate.  Coffers  and  chests 
contained  the  Chancellor's  money  in  good  store,  suf- 
ficient for  his  daily  expenses  and  the  presents  which 
he  meditated,  together  with  his  clothes,  books  and 
articles  of  the  like  nature.  One  horse  which  pre- 
ceded all  the  rest  carried  the  holy  vessels  of  his 
chapel,  the  holy  books  and  the  ornaments  of  the 
altar. 

"Likewise  each  wagon  had  chained  to  it,  either 
above  or  below,  a  large  and  fierce  mastiff,  which 
seemed  able  to  contend  with  a  bear  or  a  lion,  and  on 
top  of  every  sumpter  horse  there  was  a  monkey  with 
a  tail,  or  an  ape,  mimicking  the  human  countenance. 
On  entering  the  French  towns  and  villages,  the  pro- 
cession was  headed  by  about  350  young  men  on  foot 
in  groups  of  six,  or  ten  or  more,  singing  some  verses 
in  their  own  tongue  after  the  manner  of  their  coun- 
try. Then  came  at  a  little  distance,  harriers  and  other 
dogs  coupled  together  with  their  keepers  and  whip- 
pers  in.  Soon  after  the  wagons,  strengthened  with 
iron  and  covered  with  great  skins  of  animals  sewed 
together,  rattled  over  the  stones  of  the  streets;  at  a 
short  distance  followed  the  sumpter  horses,  rode  by 
their  grooms,  who  sat  upon  their  haunches.  The 
Frenchmen  running  out  from  their  houses  at  all  this 
noise,  inquired,  'Whose  family  can  this  be?'  Being 
answered,  'Behold  the  Chancellor  of  the  King  of 
England  going  on  a  mission  to  the  King  of  France,' 
they  exclaimed,  'How  wonderful  must  be  the  King 
of  England  himself  whose  Chancellor  travels  in  such 
state!' 


THE  SUIT  IN  EQUITY  23 

" After  the  sumpter  horses  followed  esquires  car- 
rying the  shields  of  the  knights  and  leading  the  sad- 
dle horses,  then  came  other  knights,  then  pages,  then 
those  who  bore  hawks,  then  the  standard  bearers 
and  the  upper  and  lower  servants  of  the  Chancellor's 
household,  then  soldiers  and  priests  riding  two  and 
two,  last  of  all  came  the  Chancellor  surrounded  by 
some  of  his  friends. ' '  A'Becket  was  successful  in  his 
embassy;  indeed  his  commanding  abilities  insured 
him  success  in  state  craft,  war  or  diplomacy,  but  that 
very  fact  made  him  so  formidable  to  the  king  that  he 
was  foully  assassinated  on  the  very  steps  of  the  altar 
by  the  king's  connivance,  if  not  by  his  direction.  We 
have  no  record  of  A'Becket's  judicial  acts  and  so  can 
not  judge  of  his  merits  upon  the  bench,  but  he  was 
without  doubt  the  greatest  Englishman  of  his  time. 

Notwithstanding  the  tragic  death  of  A'Becket,  the 
office  of  chancellor  lost  none  of  its  power.  The 
chancellor  indeed  had  no  court  of  his  own;  but  he 
presided  in  the  highest  court  of  the  realm;  and  he 
was  at  this  time  looked  up  to  as  a  high  judicial  author- 
ity and  he  occasionally  went  on  the  circuit  as  a  jus- 
tice in  Eyre. 

THE   CONSERVATISM   OF   THE   COMMON-LAW  JUDGE 

The  logic  of  events  seems  always  to  have  been 
kind  to  the  chancellors.  Whoever  lost  power  or 
prestige,  the  chancellor  always  gained  and  never  lost, 
Forces  were  even  now  at  work  which  ultimately  gave 
the  chancellor  a  court  of  his  own  and  one  which  pos- 
sessed extraordinary  and  overshadowing  power.    As 


24  MODERN  AMERICAN  LAW  LECTURE 

has  been  already  said,  every  action  at  law  in  the 
king's  courts  was  required  to  be  commenced  by  the 
king's  writ  issued  out  of  the  chancery.    The  fact  has 
also  been  stated  that  these  writs  gradually  shaped 
themselves  into  definite  and  set  forms  which  could 
not  be  waived  or  added  to.    The  conservatism  of  the 
judges  added  to  the  difficulty ;  they  were  not  inclined 
to  extend  the  old  and  well  seasoned  writs  to  cover 
any  case  which  did  not  fall  strictly  within  the  remedy 
afforded  by  them.     Mr.  Marsh  says,  "The  natural 
tendency  of  lawyers  to  establish  and  follow  prece- 
dents brought  about  the  result  that  in  course  of  time 
special  forms  of  the  original  writ  were  established 
for  all  ordinary  causes  of  action  and  the  common  law 
judges  refused  to  allow  those  forms  to  be  in  any  way 
altered  or  modified,  and  finally  they  refused  to  sanc- 
tion any  new  or  novel  causes  of  action,  and  they 
refused  to  entertain  any  causes  of  action  which  were 
not  covered  by  the  known  and  approved  forms  of 
writ."    These  original  writs  contemplated  little  or 
nothing  in  the  way  of  preventive  relief;  the  scope 
and  purpose  of  the  actions  which  they  commenced 
was  to  recover  money  damages.   And  so  it  came  about 
that  as  civilization  developed,  and  human  affairs  be- 
came more  complicated,  many  cases  arose  which  were 
not  covered  by  any  existing  writ,  especially  where 
the  relief  demanded  was  of  a  preventive  character 
instead  of  money  damages.     The  suitors  in  such 
cases  came  to  the  chancellor  to  secure  a  writ  and 
were  refused  or  perhaps,  having  obtained  one,  were 
unceremoniously  bundled  out  of  court  by  the  com- 
mon law  judge  because  the  case  did  not  come  within 


THE  SUIT  IN  EQUITY  25 

the  writ  which  the  chancellor  had  improvidently 
issued.  Between  the  clerical  chancellor,  the  cast  iron 
form  of  writ,  and  the  narrow  and  technical  common 
law  judge,  the  poor  suitor  who  had  the  misfortune 
to  have  an  exceptional  case  was  indeed  in  a  sorry 
plight  and  frequently  found  himself  unable  to  obtain 
any  relief.  One  attempt  at  least  was  made  to  remedy 
the  difficulty  by  a  statute  in  the  reign  of  Edward  I, 
which  provided  for  the  framing  of  new  writs  by  the 
clerks  of  the  chancery  or  by  parliament.  The  reme- 
dial effects  of  this  statute  were,  however,  narrowed 
by  the  scrupulosity  of  the  judges,  so  that  it  failed 
to  accomplish  any  substantial  results.  Blackstone 
says  that  this  provision,  with  a  little  more  accuracy 
in  the  clerks  of  the  chancery  and  a  little  more  liber- 
ality in  the  judges  by  extending  rather  than  narrow- 
ing the  remedial  effects  of  the  writ,  might  have 
effectually  answered  all  the  purposes  of  a  court  of 
equity,  except  that  of  obtaining  discovery  by  the 
oath  of  a  defendant.  The  judges,  however,  adhered 
strictly  to  form  and  precedent  and  refused  to  avail 
themselves  of  the  legislative  enactment  or  to  mould 
the  old  doctrines  of  the  common  law  so  as  to  meet 
the  exigencies  of  the  times. 

THE  RESULTING  DENIAL  OF  JUSTICE 

The  laws  of  the  period  were  necessarily  crude  and 
unscientific.  They  made  little  or  no  allowance  for 
the  exceptional  case  or  for  the  protection  of  claims 
founded  on  principles  of  essential  justice  alone  and 
which  could  not  justify  themselves  either  by  appeal 


26  MODERN  AMERICAN  LAW  LECTURE 

to  precedent  or  by  the  positive  command  of  the 
meagre  and  unyielding  written  law.  If  the  case  did 
not  fit  the  arbitrary  and  ill-shapen  pattern  which 
precedent  had  already  provided,  so  much  the  worse 
for  the  litigant.  The  man  with  such  a  case  was  either 
turned  out  of  court  or  forced  to  content  himself  with 
a  judgment  for  money  damages,  which  afforded  no 
adequate  relief  and  in  many  cases  could  never  be 
collected. 

And  thus  it  came  about  that  in  cases  involving 
the  enforcement  of  trusts,  or  where  the  process  of 
the  common  law  courts  was  being  used  oppressively 
or  fraudulently  by  the  strong  against  the  weak,  or 
where  a  legal  advantage  had  been  obtained  by  fraud, 
accident  or  mistake,  or  where  a  wrong  was  threat- 
ened and  preventive  relief  was  the  only  adequate 
remedy,  and  in  many  other  cases  arising  out  of  such 
principles  as  estoppel,  subrogation  and  the  like,  the 
common  law  courts  either  afforded  no  remedy  at  all, 
or  a  remedy  so  faulty  and  meagre  as  to  amount  to 
a  practical  denial  of  justice. 

THE  REMEDY  BY  APPEAL  TO  THE  KING 

It  is  very  manifest  that  such  a  condition  of  affairs 
could  not  exist  in  a  civilized  community  for  any  great 
length  of  time  without  a  remedy.  The  most  obvious 
remedy  was  to  make  a  direct  petition  to  the  king. 
He  was  theoretically  the  fountain  head  of  all  justice 
and  where  his  courts  refused  to  grant  adequate  relief 
because,  as  they  alleged,  they  had  not  the  power  to 
do  so,  it  was  very  plain  that  such  power  must  still 
reside  with  the  king,  and  to  him  therefore  the  out- 


THE  SUIT  IN  EQUITY  27 

raged  suitor  went  and  detailed  his  wrongs  in  the 
form  of  a  petition  and  showed  that  he  had  no  remedy 
in  the  common  law  courts  and  prayed  that  the  king 
might  in  the  plenitude  of  his  power  grant  the  relief 
which  was  denied  by  his  judges.  Doubtless  at  first 
and  perhaps  for  many  years  the  king  heard  and  de- 
cided these  petitions  himself  upon  his  own  ideas  of 
natural  right  and  justice  or  upon  consultation  with 
his  privy  council  or  immediate  advisers;  but  as  the 
business  increased,  or  when  foreign  difficulties  and 
wars  pressed  upon  him,  it  became  necessary  for  him 
to  delegate  his  powers  to  another  and  the  chancellor 
was  the  official  to  whom  this  delegation  of  power  was 
gradually  and  naturally  made.  He  was  always  with 
the  king,  was  his  most  confidential  adviser,  was  per- 
haps the  most  important  member  of  the  king's  coun- 
cil, and  was  in  addition  an  ecclesiastic  to  whom  the 
laws  of  God  as  well  as  man  were  supposed  to  be  well 
known.  Stubbs  observes  that  "the  fact  that  the 
chancellor  was  always  in  attendance  on  the  king  led 
to  the  petitions  for  royal  grace  and  favor  being  en- 
trusted to  him,  first  for  custody  and  afterwards  for 
hearing.  Hence  arose  the  equitable  jurisdiction  by 
which  he  remedied  the  'summum  jus'  of  the  common 
law  or  promised  remedies  which  were  not  provided 
for  by  the  common  lawyers." 

THE  GROWTH  OF  THE  CHANCELLOR'S  COURT 

Thus  the  chancellor  finally  became  the  judge  of 
an  independent  court  and  one  with  a  large  and  ill- 
defined  jurisdiction,  which  he  exercised  according 
to  his  own  notions  of  justice  and  equity  without  re- 


28  MODERN  AMERICAN  LAW  LECTURE 

gard  to  the  technical  precedents  and  iron  bound  rules 
which  had  become  so  dear  to  the  common  law  judges. 
The  growth  of  this  court  was  a  slow  process  and  one 
which  cannot  be  definitely  and  accurately  traced. 
Many  years  passed  before  it  was  firmly  established. 
It  was  fiercely  attacked  by  the  common  law  judges 
as  an  encroachment  on  their  rights  and  powers,  its 
pretensions  were  attempted  to  be  curbed  by  Parlia- 
ment, but  despite  all  opposition  it  lived  and  devel- 
oped and  became  a  fixture  in  English  administration 
of  justice  for  all  time.    It  grew  and  flourished  be- 
cause it  was  necessary,  and  it  was  necessary  because 
of  the  narrow-mindedness,  not  to  say  stupidity,  of 
the  common  law  courts.    The  general  distinction  be- 
tween the  jurisdiction  of  the  common  law  courts  and 
the  jurisdiction  of  this  new  court  of  equity  has  been 
noticed.    The  common  law  courts  gave  simply  money 
damages  or  specific  property  in  cases  which  fell  under 
the  established  common  law  writs,  while  the  court  of 
the  chancellor  administered  such  relief  as  seemed  ade- 
quate to  meet  the  wrong,  including  preventive  relief 
in  all  cases  where  justice  and  equity  called  for  re- 
dress and  which  did  not  come  within  the  remedy 
afforded  by  any  established  writ.    In  practice  there 
was  also  a  wide  difference  between  the  two  systems. 
An  action  at  common  law  was  commenced  by  the  orig- 
inal writ  implying  a  grant  of  jurisdiction  from  the 
king  and  the  issues  were  tried  by  a  jury,  while  a  suit 
in  equity  was  commenced  by  petition,  followed  by  a 
personal  summons  called  a  subpoena,  to  the  defend- 
ant and  a  trial  by  means  simply  of  examination  of 
the  defendant  under  oath  before  the  chancellor. 


THE  SUIT  IN  EQUITY  29 

THE  CLERICAL  CHANCELLORS 

Up  to  the  time  of  the  fall  of  Cardinal  Wolsey,  the 
chancellors,  with  a  few  unimportant  exceptions,  had 
been  ecclesiastics  and  they  administered  relief  in 
equity  according  to  their  own  views  of  right  and  jus- 
tice as  applied  to  the  particular  case  before  them  and 
did  not  follow  any  established  legal  principles.  There 
could  not,  of  course,  be  any  certainty  as  to  results 
under  such  a  system.  The  learned  Selden  in  his  table 
talk  jestingly  refers  to  this  as  follows:  " Equity  in 
law  is  the  same  that  the  spirit  is  in  religion, — what 
everyone  pleases  to  make  it.  Sometimes  they  go  ac- 
cording to  conscience,  sometimes  according  to  law 
and  sometimes  according  to  rule  of  court.  .  .  . 
Equity  is  a  roguish  thing ;  for  law  we  have  a  measure 
and  know  what  to  trust  to.  Equity  is  according  to 
the  conscience  of  him  that  is  chancellor ;  and  as  that 
is  larger  or  narrower,  so  is  equity.  'Tis  all  one  as  if 
they  should  make  the  standard  for  the  measure  the 
chancellor's  foot.  What  an  uncertain  measure  would 
this  be?  One  chancellor  has  a  long  foot,  another  a 
short  foot,  a  third  an  indifferent  foot.  It  is  the  same 
thing  with  the  chancellor's  conscience." 

Blackstone  says :  ' '  The  decrees  of  a  court  of  equity 
were  then  rather  in  the  nature  of  awards  formed  on 
the  sudden  with  more  probity  of  intention  than 
knowledge  of  the  subject,  founded  on  no  settled  prin- 
ciples, as  being  never  designed  and  therefore  never 
used  for  precedents." 

The  court  was  frequently  called  the  court  of  con- 
science and  the  name  has  descended  to  our  own  day. 
That  the  chancellors  esteemed  themselves  as  admin- 


30  MODERN  AMERICAN  LAW  LECTURE 

istering  the  laws  of  God  rather  than  of  man  is  shown 
in  the  following  extract  from  a  judgment  by  Arch- 
bishop Norton,  who  was  chancellor  in  the  time  of 
Henry  VII.  He  says :  "I  know  very  well  that  every 
law  should  be  consistent  with  the  law  of  God  and  that 
law  forbids  that  an  executor  should  indulge  in  any 
disposition  he  may  have  to  waste  the  goods  of  the 
testator;  and  if  he  does  and  does  not  make  amends 
if  he  is  able,  he  shall  be  damned  in  hell."  It  is  to  be 
hoped  that  the  chancellor  did  not  enforce  this  judg- 
ment with  an  execution  against  the  body. 

It  has  been  well  and  justly  said  that  the  clerical 
character  of  the  early  chancellors  stamped  itself  upon 
the  jurisprudence  of  the  court  founded  by  them,  and 
we  see  its  effects  even  in  the  judgments  of  the  later 
chancellors  who  were  not  ecclesiastics.  Lord  Elles- 
mere  commenced  his  judgment  in  the  Earl  of 
Oxford's  case  thus:  "  (1.)  The  law  of  God  speaks 
for  the  plaintiff,  Deut.  XXVIII.  (2.)  And  equity 
and  good  conscience  speak  wholly  for  him.  (3.) 
Nor  does  the  law  of  the  land  speak  against  him ;  but 
that  and  equity  ought  to  join  hands  in  moderating 
and  restraining  all  extremities  and  hardships.  By 
the  law  of  God  he  that  builds  a  house  ought  to  dwell 
in  it  and  he  that  plants  a  vineyard  ought  to  gather 
the  grapes  thereof;  and  it  was  a  curse  upon  the 
wicked  that  they  should  build  houses  and  not  dwell 
in  them  and  plant  vineyards  and  not  gather  the 
grapes  thereof.    Deut.  XXVIII,  30. 

"And  yet  here  in  this  case  such  is  the  conscience 
of  the  doctor,  the  defendant,  that  he  would  have  the 
houses,  gardens  and  orchards  which  he  neither  built 


THE  SUIT  IN  EQUITY  31 

nor  planted;  but  the  chancellors  have  always  cor- 
rected such  corrupt  consciences  and  caused  them 
to  render  quid  pro  quo,  etc." 


fHE  INFLUENCE  OF  THE  CLERICAL  CHANCELLORS  ON 

THE  LAW 

There  is  not  space  here  to  inquire  extensively  into 
the  effect  and  influence  which  the  clerical  chancellors 
exerted  through  the  court  of  equity  upon  English  law 
and  consequently  upon  American  law.  That  it  was 
great  cannot  be  doubted  and  that  it  was  in  the  main 
vastly  beneficial  can  as  little  be  doubted.  The  com- 
mon law  lawyers  and  judges  with  their  technicalities, 
their  strict  devotion  to  precedent,  and  their  narrow- 
ness of  mind  unwittingly  paved  the  way  for  a  court 
which  should  be  careless  for  a  time  of  precedent  and 
which  should  disregard  mere  forms  and  rules  which 
seemed  designed  rather  to  thwart  than  to  expedite 
justice.  Irregular  and  uncertain  as  its  judgments 
may  have  been,  it  was  at  least  a  court  which  aimed  to 
give  relief  commensurate  with  the  wrong  done  or 
threatened.  Mr.  Kerly  says,  "The  wrork  of  the  ec- 
clesiastical chancellors  was  an  exceedingly  beneficial 
one,  for  it  may  well  be  doubted  whether  the  judges 
trained  in  the  practice  of  the  common  law  would  ever 
have  possessed  the  courage  to  interfere  with  its  rules 
in  the  face  of  the  professional  opinion  of  their 
brethren,  or  indeed  have  been  sufficiently  detached  in 
mind  to  discover  that  the  rules  stood  in  need  of  cor- 
rection." 

The  idea  that  there  are  no  rules  of  law  governing 


32  MODERN  AMERICAN  LAW  LECTURE 

the  judgments  of  a  court  of  equity  has  indeed  long 
since  passed  away;  its  jurisdiction  is  as  definitely 
fixed  and  the  rules  of  law  governing  its  action  as  well 
established  as  are  the  jurisdiction  and  rules  applica- 
ble to  common  law  courts,  but  it  is  still  the  court  of 
conscience,  it  still  interferes  to  relieve  fraud,  oppres- 
sion or  inadequacy  of  remedy  at  common  law,  it  still 
retains  many  of  the  characteristics  given  it  by  the 
long  line  of  clerical  chancellors. 

THE  LAST  OF  THE  CLERICAL  CHANCELLORS 

Cardinal  Wolsey  was  the  most  ambitious  and  per- 
haps altogether  the  greatest  of  the  clerical  chancel- 
lors, and  was  practically  the  last  of  his  race  and  the 
typical  example  of  his  class.  Campbell  says  of  him 
that  "he  enjoyed  more  power  than  any  of  his  pre- 
decessors or  successors  who  have  held  the  office.' ' 

Born  a  butcher's  son,  he  rose  to  be  bishop,  arch- 
bishop, cardinal,  chancellor  (almost  equaling  the 
king  in  his  power),  and  narrowly  missed  the  triple 
crown.  But  he  died  in  prison  under  the  charge  of 
treason,  a  victim  of  his  own  overweening  ambition 
and  the  irrepressible  and  surprising  tendency  of 
Henry  VIII.  to  contract  new  marriages  regardless  of 
all  conventional  rules.  He  was  for  years  a  great 
favorite  and  almost  a  boon  companion  of  "bluff  King 
Hal,"  and  Campbell  says  that  his  manner  of  living 
eclipsed  the  splendor  of  the  king's  court.  The  de- 
scriptions of  it  remind  us  of  the  stories  told  of 
A'Becket,  his  great  predecessor.  His  household  con- 
sisted of  800  persons,  including  one  earl,  nine  barons, 
and  many  knights  and  squires.    He  had  a  high  chain- 


THE  SUIT  IN  EQUITY  33 

berlain,  a  vice-chamberlain,  a  treasurer,  a  controller 
and  other  officers  corresponding  to  those  of  the 
royalty,  bearing  white  staves.  He  had  in  his  hall 
kitchen  two  master  cooks,  with  many  assistants,  and 
in  his  private  kitchen  a  master  cook,  who  went  daily 
in  damask  satin  or  velvet,  with  a  gold  chain  about  his 
neck.  Campbell  says,  "We  have  likewise  very  pic- 
turesque descriptions  of  his  march  to  the  Court  at 
Greenwich  on  Sundays,  riding  through  Thames  street 
on  his  mule,  with  his  crosses,  his  pillars,  his  hat  and 
the  great  seal  till  he  came  to  Billingsgate ;  where  he 
took  his  barge,  and  of  the  gorgeous  celebration  of 
mass  in  his  chapel,  where  he  was  attended  by  Bishops 
and  Abbots.  Such  was  his  haughtiness,  that  he  made 
dukes  and  earls  to  serve  him  his  wine  and  to  hold  the 
basins  and  lavatories. " 

His  daily  progress  from  York  house  to  the  court 
of  chancery  in  Westminster  was  a  gorgeous  pageant. 
There  was  first  borne  before  him  the  great  seal,  two 
great  crosses  of  silver,  two  great  pillars  of  silver,  a 
pursuivant  with  a  silver  mace  and  other  attendants 
with  axes,  gorgeously  attired,  and  finally  came  the 
Cardinal  upon  his  mule  trapped  in  crimson  velvet 
and  gilt  stirrups. 

Cavendish  in  a  metrical  autobiography  which  he 
imputes  to  Wolsey  says : 

"My  crosses  twain  of  silver  long  and  great 
That  daily  before  me  were  carried  high 
Upon  great  horses  openly  in  the  street 
With  massy  pillars  glorious  to  the  eye 
With  poll  axes  gilt  that  no  man  durst  come  nigh, 
My  presence  I  was  so  princely  to  behold 
Riding  on  my  mule  trapped  in  silver  and  gold." 


34  MODERN  AMERICAN  LAW  LECTURE 

This  splendor  called  forth  some  criticism  and  it 
was  a  common  saying  that  the  two  crosses  showed 
that  he  had  twice  as  many  sins  to  repent  of  as  any 
other  prelate.  One  Doctor  Barnes,  a  clergyman,  in- 
veighed against  the  cardinal's  pomp  and  luxury  and 
was  summoned  before  the  cardinal  and  rebuked  in 
these  words,  "What,  Master  Doctor,  had  you  not  a 
sufficient  scope  in  the  scriptures  to  teach  the  people 
but  that  my  golden  shoes,  my  poll  axes,  my  pillars, 
my  golden  cushions  and  my  crosses  did  so  offend  you 
that  you  must  make  us  ridiculum  caput  amongst  the 
people?  We  were  jollily  that  day  laughed  to  scorn. 
Verily  it  was  a  sermon  more  fitter  to  be  preached  on 
the  stage  than  in  the  pulpit."  Barnes  answered, 
"that  he  had  spoken  nothing  but  the  truth  out  of  the 
scriptures  according  to  his  conscience,"  and  he  was 
for  the  time  discharged. 

None  of  Wolsey's  decisions  as  lord  chancellor  have 
come  down  to  us,  so  that  it  is  difficult  to  correctly  esti- 
mate his  capacity  as  a  judge.  It  is  generally  allowed, 
however,  that  he  displayed  great  impartiality  and 
much  discrimination  and  shrewdness  in  discussing  the 
principles  of  law  and  equity,  and  he  gained  such  repu- 
tation that  by  some  he  is  thought  to  have  been  the 
chancellor  who  firmly  established  the  chancery  as  a 
court  of  equity.  However  this  may  be,  it  seems  quite 
certain  that  he  chose  to  exercise  his  equitable  author- 
ity over  everything  which  could  be  a  matter  of  judi- 
cial inquiry  and  thus  extended  the  jurisdiction  of  the 
court.  Business  multiplied  greatly  and  there  came 
to  be  great  arrears,  so  that  of  his  own  authority  he 
established  four  new  courts  of  equity  by  commission 


THE  SUIT  IN  EQUITY  35 

in  the  king's  name,  but  one  of  which,  however,  sur- 
vied  Wolsey 's  fall,  namely,  the  court  of  the  master 
of  the  rolls. 

THE  FIRST  GREAT  LAY  CHANCELLOR 

Wolsey  was  succeeded  by  an  illustrious  and  tal- 
ented layman,  Sir  Thomas  More,  whose  virtues,  abil- 
ities and  melancholy  end  have  made  him  a  most  inter- 
esting historical  character. 

He  was  bred  to  the  law  and  had  taken  a  high  rank 
in  his  profession  when  Wolsey  fell,  and  it  was  uni- 
versally acknowledged  that  he  was  the  fittest  man  to 
succeed  the  great  cardinal. 

He  found  it  necessary  to  use  the  writ  of  injunction 
to  stay  inequitable  actions  at  law,  but  it  is  said  that 
he  did  not  do  it  until  he  had  invited  all  the  common 
law  judges  to  dine  with  him,  on  which  occasion  he 
pressed  upon  them  that  they  should  reform  the  rigor 
of  the  common  law  tribunals,  but  they  refused,  being 
anxious,  as  the  chancellor  thought,  to  cast  all  respon- 
sibility upon  the  jury.  He  had  the  great  seal  but 
two  years  and  a  half,  but  in  that  time  he  succeeded 
by  his  assiduity,  quickness  and  learning  in  completely 
wiping  out  all  arrears  of  business,  so  that  before  the 
end  of  his  chancellorship  every  cause  was  decided  as 
soon  as  it  was  ripe  for  hearing. 

One  morning  before  the  end  of  the  term  there 
was  not  another  cause  to  be  heard  or  set  down  for 
hearing,  whereupon  he  ordered  the  fact  to  be  entered 
of  record.  The  fact  is  said  to  have  been  entered  in 
metrical  form  with  a  prophecy  which  unfortunately 
has  proven  true  as  follows : 


36  MODERN  AMERICAN  LAW  LECTURE 

"When  More  sometime  had  chancellor  been 
No  more  suits  did  remain ; 
The  same  shall  never  more  be  seen 
Till  More  be  there  again. ' ' 

More  was  a  man  of  great  culture  and  learning  and 
of  strict  integrity  and  the  highest  ideas  of  honor. 
Campbell  says,  "His  character  both  in  public  and 
private  life  comes  as  near  perfection  as  our  nature 
will  permit.' '  He  met  his  death  at  the  hands  of 
Henry  VIII,  bravely  and  for  conscience'  sake.  One 
would  like  to  linger  over  so  lovable  a  character  which 
flourished  in  an  era  of  persecution  and.  bloodshed,  but 
the  limits  of  this  paper  will  not  permit  it. 

More  was  succeeded  by  a  number  of  unprincipled 
lay  chancellors  who  flourished  in  the  latter  part  of  the 
reign  of  Henry  VIII,  whose  acts  are  of  no  special 
interest  in  connection  with  the  subject  before  us. 
With  one  or  two  unimportant  exceptions,  the  chan- 
cellors succeeding  Wolsey  were  all  laymen. 


THE  LAST  STRUGGLE  BETWEEN  COKE  AND 
ELLESMERE 

The  last  serious  struggle  between  the  common  law 
courts  and  the  chancellor's  court  of  equity  took  place 
in  the  reign  of  James  I,  about  the  year  1616,  Lord 
Ellesmere  being  chancellor,  Francis  Bacon  attorney 
general,  and  Lord  Coke  being  chief  justice.  The 
times  were  troublous.  Coke  was  an  independent  and 
spirited  man  full  of  the  pride  of  his  order,  with  a 
great  reputation  for  independence  of  character  and 
learning,  and  he  deemed  himself  powerful  enough  to 


THE  SUIT  IN  EQUITY  37 

wage  open  war  upon  the  chancellor's  equitable  juris- 
diction to  stay  the  prosecution  of  suits  in  the  common 
law  courts. 

It  was  a  battle  royal  and  to  the  finish.  It  was 
veritably  the  last  ditch  of  the  law  courts  in  their 
struggle  against  the  court  of  equity. 

Mr.  Marsh  says  of  the  struggle:  ''The  particular 
limits  of  the  chancellor's  equitable  jurisdiction  were 
as  yet  exceedingly  indefinite.  The  chancellors  were 
generally  prone  to  extend  them,  and  being  at  the  same 
time  ministers  of  state  in  a  government  of  very  arbi- 
trary temper,  regarded  too  little  that  course  of  prece- 
dent by  which  the  other  judges  held  themselves  too 
strictly  bound.  The  cases  reckoned  cognizable  in 
chancery  grew  silently  more  and  more  numerous,  but 
with  little  overt  opposition  from  the  court  of  law  till 
the  time  of  Sir  Edward  Coke.  That  great  master  of 
the  common  law  was  inspired  not  only  with  the  jeal- 
ousy of  this  irregular  and  encroaching  jurisdiction 
which  most  lawyers  seem  to  have  felt,  but  with  a  tena- 
ciousness  of  his  own  dignity  and  a  personal  enmity 
toward  Ellesmere  who  held  the  great  seal.  It  hap- 
pened that  an  action  had  been  tried  before  him,  the 
precise  circumstances  of  which  do  not  appear, 
wherein  the  plaintiff  lost  the  verdict  in  consequence 
of  one  of  his  witnesses  being  artfully  kept  away.  He 
had  recourse  to  the  court  of  chancery,  filing  a  bill 
against  the  defendant  to  make  him  answer  under 
oath,  which  he  refused  to  do,  and  was  committed  for 
contempt.  Indictments  were  upon  this  preferred,  at 
Coke's  instigation,  against  the  parties  who  filed  the 
bill  in  chancery,  their  counsel  and  solicitors,  for  suing 


38  MODERN  AMERICAN  LAW  LECTURE 

in  another  court  after  judgment  obtained  at  law, 
which  was  alleged  to  be  contrary  to  the  statutes  of 
praemunire.  But  the  grand  jury,  though  pressed,  as 
it  is  said  by  one  of  the  judges,  threw  out  these  indict- 
ments. The  king,  already  incensed  with  Coke  and 
stimulated  by  Bacon,  thought  this  too  great  an  insult 
upon  his  chancellor  to  be  passed  over.  He  first 
directed  Bacon  and  others  to  search  for  precedents 
of  cases  where  relief  had  been  given  in  chancery  after 
judgments  at  law;  they  reported  that  there  was  a 
series  of  such  precedents  from  the  time  of  Henry 
VIII,  and  some  where  the  chancellor  had  entertained 
suits  even  after  execution.  The  attorney  general  was 
directed  to  prosecute  in  the  Star  Chamber  those  who 
had  preferred  the  indictments,  and  as  Coke  had  not 
been  ostensibly  implicated  in  the  business,  the  king 
contented  himself  with  making  an  order  in  the  coun- 
cil book  declaring  the  chancellor  had  not  exceeded 
his  jurisdiction."  This  order,  after  reciting  the  in- 
vestigation made,  commanded  "that  the  chancellor 
do  not  desist  from  giving  such  relief  to  the  king's 
subjects  as  shall  stand  with  true  merits  and  justice 
of  their  cases  (notwithstanding  any  former  proceed- 
ings at  common  law  against  them)." 

BACON  AS  CHANCELLOR 

To  this  order  Coke  submitted  as  gracefully  as  he 
might.  After  this  time  there  were  no  more  serious 
assaults  upon  the  equitable  jurisdiction  of  the  chan- 
cellor. Lord  Bacon  succeeded  Ellesmere  and  held  the 
office  for  four  years.  He  was  perhaps  the  greatest 
man   intellectually  who   ever  held  the   great  seal. 


THE  SUIT  IN  EQUITY  39 

Kerly  says  of  him,  "Of  all  men  of  his  age  he  was 
probably  best  fitted  to  devise  new  principles,  and  to 
rationalize  the  old  ones  and  his  mighty  reputation 
and  transcendent  genius,  if  unsullied  by  the  shame 
of  his  degradation,  would  probably  have  preserved 
for  long  the  fabric  he  perfected.' '  His  time  was  too 
short,  however,  to  leave  any  very  lasting  or  deep  im- 
press upon  the  court.  Pope's  line  describing  him  as 
"The  wisest,  brightest,  meanest  of  mankind"  will  be 
remembered  by  all,  and  while  this  estimate  is  not 
entirely  just,  considering  the  time  in  which  he  lived, 
it  has  sufficient  foundation  and  is  so  epigrammatic 
that  it  will  doubtless  be  always  accepted.  The  troub- 
lous times  of  the  Long  Parliament  and  the  protec- 
torate soon  followed,  the  middle  classes  arose  in  their 
might  and  before  another  century  dawned  the  abso- 
lute king  reigning  by  divine  right  had  passed  away 
forever,  to  be  succeeded  by  the  constitutional  monarch 
reigning  by  the  consent  of  the  people,  but  the  court 
of  equity  presided  over  by  the  chancellor,  or  by  com- 
missioners of  the  great  seal  (as  the  keepers  were 
called  under  the  commonwealth)  survived  with  little 
change  in  power  save  in  the  direction  of  reforms  in 
procedure.  Gradually,  under  a  long  line  of  distin- 
guished lay  chancellors,  the  principles  of  equity  be- 
came crystallized  into  a  system  of  well  established 
rules,  and  the  old  theory  that  no  fixed  rule  governed 
the  chancellor  was  abandoned.  The  strict  and  some- 
times absurd  rules  of  the  common  law  have  been 
gradually  moulded  and  modified  by  equity  doctrines. 
It  has  been  truly  said,  "Equity  and  law  are  in  con- 
tinual progression,  and  the  former  is  constantly  gain- 


40  MODERN  AMERICAN  LAW  LECTURE 

ing  ground  upon  the  latter.  Every  new  and  extraor- 
dinary interposition  is  by  length  of  time  converted 
into  an  old  rule.  A  great  part  of  what  is  now  strict 
law  was  formerly  considered  as  equity;  and  the 
equitable  decisions  of  this  age  will  unavoidably  be 
ranked  under  the  strict  law  of  the  next." 


THE  RESULTS  FORMULATED 

It  would  not  be  helpful  to  pursue  the  English  his- 
torical inquiry  further,  indeed  it  may  be  that  too 
much  space  has  already  been  devoted  to  it.  We  are 
ready  now  to  formulate  results  and  to  note  their  bear- 
ing upon  American  administration  of  justice. 

As  has  been  already  indicated  in  this  lecture,  there 
had  grown  up  in  England  at  the  time  of  the  estab- 
lishment of  the  first  American  courts,  two  inde- 
pendent courts  with  jurisdiction  over  the  same 
classes  of  litigants  and  the  same  general  subjects  of 
litigation,  the  limits  of  the  jurisdiction  of  each  being 
practically  fixed  by  the  nature  of  the  relief  to  be  ad- 
ministered ;  if  the  remedies  given  by  the  common  law 
courts  were  adquate  those  courts  had  jurisdiction; 
if,  however,  the  common  law  courts  gave  no  remedy 
or  only  an  inadequate  one,  the  litigant  could  bring  his 
suit  in  equity. 

The  test  was  simple  enough  in  theory,  but  was  not 
always  easy  of  application.  It  involved,  of  course, 
an  accurate  knowledge  of  common  law  actions  and 
their  scope.  These  actions  were  included  in  three 
classes,  viz:  (1)  Real  actions,  brought  for  the  spe- 
cific recovery  of  the  title  or  possession  of  real  prop- 


THE  SUIT  IN  EQUITY  41 

erty;  (2)  Personal  actions,  brought  for  the  specific 
recovery  of  goods  or  chattels,  or  for  the  recovery  of 
damages  for  breach  of  contract,  or  for  tortious  in- 
jury, and  (3)  Mixed  actions,  brought  for  the  recovery 
of  real  property  and  damages  for  injury  in  respect 
thereto.  In  every  case  the  remedy  was  either  prop- 
erty or  money  and  in  every  case  the  litigant  was  en- 
titled to  the  verdict  of  a  jury  on  his  right. 

In  addition  to  these  remedies,  there  existed  also  in 
the  great  common  law  court  of  King's  bench  powers 
of  an  appellate  and  superintending  nature,  by  which 
it  was  able  to  control  the  course  of  justice  in  the  in- 
ferior common  law  courts,  as  well  as  in  administrative 
bodies.  The  first  of  these  powers  was  exerted  by  the 
use  of  the  writ  of  error  and  the  second  by  the  so- 
called  prerogative  writs  of  mandamus,  prohibition, 
quo  warranto,  procedendo,  habeas  corpus  and  cer- 
tiorari. These  latter  writs  were  called  prerogative 
writs  because  they  issued  not  as  a  matter  of  right  but 
within  the  discretion  of  the  king,  sitting  in  his  own 
court  and  exercising  his  kingly  prerogative  when  it 
seemed  to  be  necessary  in  the  interest  of  justice  to 
control  by  direct  command  the  action  of  an  inferior 
court,  officer  or  even  a  private  citizen. 

When  none  of  these  remedies  were  available  or 
adequate,  the  court  of  chancery  was  open  and  not  till 
then. 

TRANSFER  OF  THE  SYSTEM  TO  AMERICA 

The  English  system  was  naturally  copied  by 
America  and  thus  independent  courts  of  law  and 
equity  arose  in  the  American  system.     Gradually, 


42  MODERN  AMERICAN  LAW  LECTURE 

however,  the  fact  became  realized  that  the  same  court 
could  well  administer  both  legal  and  equitable  relief, 
and  as  a  result  separate  courts  of  equity  have  been 
abolished  in  both  state  and  federal  judicial  systems, 
with  the  exception  of  a  very  few  jurisdictions. 

Following  this  change  came  the  reformed  codes  of 
procedure,  abolishing  in  terms  the  distinction  be- 
tween legal  and  equitable  actions  and  providing  for  a 
single  form  of  action  in  which  the  pleadings  were 
required  to  state,  without  unnecessary  repetition,  the 
facts  on  which  the  right  of  action  was  supposed  to 
depend. 

WHY  THE  SUIT  IN  EQUITY  STILL  REMAINS 

Superficially  these  provisions  would  seem  to  wipe 
out  the  distinction  between  the  two  forms  of  action. 
That  they  did  not  do  so  in  fact  is  clear  and  the  reason 
why  is  equally  clear.  The  reason  is  that  the  funda- 
mental distinction  has  been  preserved  in  fact,  though 
not  in  words,  by  both  federal  and  state  constitutions 
and  hence  no  legislative  code  can  do  away  with  it. 
The  constitution  makers,  both  state  and  federal, 
deemed  the  right  of  trial  by  jury  the  very  cornerstone 
of  individual  liberty,  and  hence  they  very  carefully 
guarded  it  by  specific  provisions  to  the  effect  that  the 
right  of  jury  trial  should  remain  inviolate.  These 
provisions  have  been  universally  construed  as  pre- 
serving the  right  as  it  existed,  or  in  other  words,  as 
forever  securing  to  the  litigant  a  jury  trial  of  those 
issues  which  under  the  system  existing  at  the  time 
of  the  adoption  of  the  provisions  were  triable  by  jury. 
This  means,  of  course,  such  issues  as  arose  in  the  old 


THE  SUIT  IN  EQUITY  48 

common  law  actions  under  whatever  name  or  form 
they  may  now  exist. 

The  result  is  plain.  The  litigant  who  has  suffered 
an  injury  formerly  redressed  by  appeal  to  the  com- 
mon law  courts  and  trial  by  jury  must  still  invoke  the 
same  remedy, — that  is,  he  can  not  appeal  to  the  equity 
side  of  the  court,  where  the  judge  tries  the  issues  of 
fact  as  the  chancellor  did  of  old,  but  must  go  before  a 
jury  unless  his  opponent  consents  to  waive  his  right 
to  a  jury  trial. 

The  difference  between  the  legal  and  equitable 
action  is  thus  preserved  and  fortified,  notwithstand- 
ing the  most  sweeping  changes  in  nomenclature  or 
forms  of  procedure. 

A  litigant  can  not  take  his  purely  legal  cause  of 
action  away  from  the  arbitrament  of  a  jury  without 
his  opponent's  consent.  Naturally,  therefore,  we  still 
speak  of  the  suit  in  equity  and  the  action  at  law,  be- 
cause these  names  express  the  distinction  which  has 
been  preserved  in  substance,  though  not  in  words,  by 
the  constitutional  provisions  to  which  reference  has 
been  made.  While  these  provisions  exist,  the  essen- 
tial difference  between  the  two  actions  will  also  exist 
and  cannot  perhaps  be  better  expressed  than  by  the 
use  of  terms  whose  meaning  lias  been  fixed  by  cen- 
turies of  legal  history. 


GAYLAMOUNT«) 
PAMPHLET  BINDER 

-"^"*       Syracuse,  N.Y. 
'       Stockton,  Calif. 


000  821 


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•    .         ..     V    .         I 


